Sibal's Plea Reopens Anti-Defection Law Debate
Supreme Court has issued notice on a challenge to the Tenth Schedule's merger exception, even as the petitioner questions the bench's delay in ruling
Synopsis
Senior Advocate and independent Rajya Sabha MP Kapil Sibal has asked the Supreme Court why it has yet to adjudicate his challenge to the merger exception under the 10th Schedule that he says is being used by AAP, TMC and Shiv Sena (UBT) MMs to defect from their parties. The court had also issued notice to the Centre, while observing that the amendment of the provision is up to Parliament.
The Provision at the Centre of the Storm
An amendment added to the Constitution in 1985 stipulates that members of Parliament who defect from their party are disqualified by the 10th schedule. However, there is an exception in paragraph 4: "defection" is not a disqualification if it is "as a result of a 'merger' between the original political party and another party". The Supreme Court's decision that the Schedule was constitutional decades ago in Kihoto Hollohan v. Zachillhu has become a contentious ground.
The Goa Precedent
Even if the party to which the two-thirds of the members of the legislature belong does not merge with another party, the “merger exception” applies, ruled the Goa Bench of the Bombay High Court.
It would mean that Goa Congress MLAs who switched allegiance to the BJP after the 10 Congress members did so will not be disqualified. However, as the tenure of the Assembly came to an end in 2022, the special leave petition challenging this interpretation was struck off as infructuous, but then another such episode happened after 2022 with eight out of 11 Congress MLAs again overstepping their bounds — a matter which is pending before the apex court.
The delay in the Supreme Court's verdict on the 'merger' issue under 10th Schedule of the Constitution of India has a bearing on the future of democracy, Kapil Sibal has asked.
What Sibal Argues
Sibal argued that the interpretation has been “weaponised” beyond the confines of Goa in a legal forum in Kochi. He cited the seven members of the Aam Aadmi Party (AAP) who joined the BJP, and six members of the Shiv Sena (UBT) who joined the Eknath Shinde-led group in June, 2026, as examples of the merger. The petition also claims that 20 Trinamool Congress Lok Sabha MPs have switched to the NDA.
Why didn't the Supreme Court rule on this issue since 2022? According to accounts of his speech in Kochi, Sibal had made this request in the wake of the delay’s implications on the "future of democracy".
Horse-trading was the systematic buying of elected politicians, says Sibbal, with cash, ministerial office, or immunity from investigation being some of the rewards. Such rewards were imposed by Sibbal, not the findings of the investigation.
The Court's Position
In issuing notice to the Centre on July 26, the bench of Justices P.S. Narasimha and Alok Aradhe said that the point raised were typically "to be raised on the floor of the House" and "unless the House of the People discusses it, it should not be the duty of the judiciary to rewrite Paragraph 4. Justice Narasimha said that the Schedule was drawn up by Parliament itself, and asked them to think about changing the mechanism. This issue has been side-lined in light of the pending Goa case.
Why It Matters
The results will help decide if the coalition exception remains as a valid "pathway to coalition realignment" or as, in Sibal's words, a "loophole that's destroying electoral mandate". The constitutional issue is still pending as the petition was filed along with the Goa case and there has been no particular date set for the hearing.